Excerpt:.....act, 1958 - revision petition filed by tenant against order of eviction - petitioner did not file affidavit before court - nothing brought to notice of additional rent controller why affidavit not filed - nor any request made for filling affidavit after expiry of fifteen days in spite of specific objection by landlord - petition dismissed.
- - this original summons is in complete consonance with the statutory form of summons prescribed by the third schedule of the act and was personally served on the tenant-petitioner on 3-5-1980. (15) in spite of the objection taken by the landlord, both in his reply to the application of the tenant as well as in his affidavit, no attempt whatsoever was made right from 28th august, 1980 to 29th november, 1980 when the order was pronounced by..........of the act.' thereforee, the position boils down to this that not only the tenant is required to file application for leave to contest the eviction-application within 15days but that application has also to be supported by an affidavit as is referred to in sub-sec. (5) of section 25b of the act within that period. the affidavit contemplated by sub-sections (4) and (5) of section 25-b of the act is the affidavit of the tenant himself. (22) in the present case, no affidavit was filed before the trial court nor was any request made for filing it after the expiry of 15 days in spite of specific objection having been taken by the landlord. it was not mentioned in the affidavit of smt. renu malhotra that she was authorised to file the affidavit in terms of order 3, rules i and 2 of the code.....

Judgment:

Yogeshwar Dayal, J.

(1) This petition for revision under proviso to Sub-sec. (8) of Section 25-B of Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act',) has been filed on behalf of the tenant against the order of the learned Addl. Rent Controller, Delhi, dated 29.11.1980 dismissing the application of tenant-petitioner for leave to defend the ejectment application filed on behalf of their respondent-landlord under proviso (e) to Sub-sec. (1) of Section 14 of the Act and passing an order for ejectment against the tenant-petitioner.

(2) The respondent Shri M.L. Kapur, is the owner-landlord of premises No. G-42, Friends Colony, New Delhi and the petitioner is tenant in a portion of this house.

(3) According to the application for ejectment, the premises were let out to the tenant for residential purposes and are now required bona fide by the respondent-landlord for his own residence and for the residence of the members of his family dependent upon him and that he has 'no reasonably suitable accommodation'.

(4) The petitioner-tenant was served with the summons as prescribed by the third schedule of the Act.

(5) The petitioner-tenant filed an application for leave to contest the ejectment-application on 17-5-1980.

(6) The application for leave to contest the ejectment application was not supported by any affidavit of the tenant but instead was supported by the affidavit of Mrs. Renu Malhotra, wife of the tenant. It was stated in the affidavit of Mr. Malhotra that she was conversant with the facts of the case and was competent to swear the affidavit.

(7) The respondent-landlord, in reply to the application and the affidavit of the wife of the tenant, filed an affidavit controverting various facts stated in the application for leave to contest and the affidavit.

(8) In reply to the application for leave to contest and the affidavit in support thereof, it was specifically stated that 'Smt. Renu Malhora has got no locus standi to swear the affidavit on behalf of the respondent (tenant). The petitioner (landlord) are entitled to a decree of eviction forthwith as the respondent (tenant) has not complied with the requirements of Section 25-B(4) of the D.R.C. Act.'

(9) The aforesaid affidavit was filed by the landlord as far back as 28th August, 1980. Along with the affidavit, various documents were filed by the landlord including the lease-deed entered into between the landlord and the tenant stating, inter alia, that the lessee shall use the premises for his residence only.

(10) The case was thereafter adjourned for arguments on 8-10-1980 on which date the matter was adjourned for arguments to 10-10-1980. Again, on 10-10-1980 the matter was adjourned to 27-11-1980. On 27-11-1980 some documents were filed on behalf of the tenant and the matter was again adjourned for arguments to 29-11-1980.

(11) On 29-11-1980 the impugned order was passed.

(12) The learned Addl. Rent Controller dismissed the application for leave to contest the ejectment-application on the ground that no affidavit had been filed by the tenant as contemplated by Section 25-B(4) of the Act and there is no material on which the tenant-petitioner can contest the ejectment application and the affidavit of Mrs. Renu Malhotra, who is neither the tenant in this case nor she is the authorised attorney of her husband-tenant to file any such affidavit, could not be looked into. As there was no material which could be considered for granting leave to the tenant to contest the ejectment-application, the aforesaid order was passed.

(13) The tenant, being dissatisfied, has come up in revision.

(14) Before I deal with the submissions of the learned counsel for the parties, I may mention that I have perused the original summons served on the tenant along with the copy of the application for eviction. This original summons is in complete consonance with the statutory form of summons prescribed by the third schedule of the Act and was personally served on the tenant-petitioner on 3-5-1980.

(15) In spite of the objection taken by the landlord, both in his reply to the application of the tenant as well as in his affidavit, no attempt whatsoever was made right from 28th August, 1980 to 29th November, 1980 when the order was pronounced by the learned Addl. Rent Controller, to file any affidavit of the tenant-petitioner himself.

(16) It was argued by Mr. R.K. Makhija, learned counsel for the tentant-petitioner, that no opportunity was given to the tenant by the learned Addl. Rent Controller for filing of the affidavit by the tenant. It was also submitted that the learned Addl. Rent Controller had ample powers to give opportunity to the tenant to file his own affidavit. In any case, it was submitted, the petitioner has now filed the affidavit stating the grounds for opposing the ejectment application and also stating grounds as to why he could not file his affidavit before the learned Addl. Rent Controller for leave to contest the ejectment-application.

(17) It is stated in the affidavit dated 4-11-1981 now filed by the tenant that when summonses in the suit were served on him he was a heart patient. He was confined to bed under strict medical advice because of heart attack on 6-5-1980 and was under strict instruction not to move out of bed and exert in any way. He thus could not leave the bed and personally deal with the matter. This is why, it is stated, his wife who was living with him and looking after him and who was conversant with the facts of this case, filed the affidavit dated 17.5.1980 for leave to defend the ejectment application. A certificates from a doctor dated September 10, 1981 along with electrocar diagrams of the tenant-petitioner, dated 10-5-1980, 9-6-1974, 3-12-1975, 16-12-1976 2-11-1977, 27-4-1976 and 4-12-1980 were also filed.

(18) The provisions of Section 25-B of the Act and the third schedule have been the subject-matter of various decisions of this Court and the Supreme Court. In Jijar Singh v. Mahender Kaur, Vol : AIR1979Delhi245 . S. Deshpande, C. J. (as his Lordship then was) and Harish Chandra. J., while considering the question whether the ground for contesting eviction should be self-contained in the affidavit or the affidavit can be read along with the application, noticed the provisions of sub-sections (4) and (5) of Section 25-B of the Act and observed as under :

'6.At the time the tenant is served with the summons he is required to comply with the directions stated therein. He cannot be blamed, thereforee, if the steps which he takes are strictly in accordance with the summons rather than in accordance with some interpretation put upon sub-sections (4) and (5) of Section 25-B without reading the directions in the summons in the form prescribed in the Third Schedule. The period during which the tenant has to make an application is a short one. He does not have too much time to think. The tenant is under pressure because he is threatened with eviction from the premises of the landlord. In these circumstances, the law should require minimum compliance by the tenant with the requirements of the Third Schedule read with Section 25-B rather than some standard of excellence over and above the minimum requirements of the law. 7. The minimum requirements are that the application for leave to contest must be supported by an affidavit and that the affidavit has to be as is referred to in Sub-section (5) of Section 25-B. Sub-section (4) also may be read with subsection (5) . . . ......'.

(19) Having noticed the minimum requirements that the tenant has to comply with, the learned Judges took the view that penalty of being refused leave to defend eviction-application can be imposed on the tenant only if he fails to comply with the minimum requirements of law but not merely because a self-contained affidavit would have been desirable, (para 15 of the report),

'.........lf only the appearance has to be put in within 15 days but an affidavit can be filed any time subsequently the whole situation will become uncertain. It is true that the court may control the contumacious conduct of a tenant in delaying to file the affidavit but that would leave the matter to the uncertainties of each case which would be contrary to the compulsions of the urgency indicated by Chapter HI.'

(21) After noticing the earlier judgment of this Court, the Division Bench in the case of Owditta Mal (supra), answered the reference by holding :

'THATthe tenant is required within 15 days of the service of the. summons not only to put in his appearance before the Rent Controller but also within the same period to file an application supported by an affidavit seeking leave to contest the application filed by the landlord and that if such an affidavit and application is not filed within the said period of 15 days, he would have defaulted in terms of Section 25-B(4) of the Act.'

thereforee, the position boils down to this that not only the tenant is required to file application for leave to contest the eviction-application within 15days but that application has also to be supported by an affidavit as is referred to in Sub-sec. (5) of Section 25B of the Act within that period. The affidavit contemplated by Sub-sections (4) and (5) of Section 25-B of the Act is the affidavit of the tenant himself.

(22) In the present case, no affidavit was filed before the trial court nor was any request made for filing it after the expiry of 15 days in spite of specific objection having been taken by the landlord. It was not mentioned in the affidavit of Smt. Renu Malhotra that she was authorised to file the affidavit in terms of Order 3, Rules I and 2 of the Code of Civil Procedure. She merely claimed that she was conversant with the facts of the case.

(23) I am bound by the aforesaid decisions of the Division Bench of this Court.

(24) Mr. Makhija, learned counsel for the tenant, however, brought to my notice a decision of Sultan Singh, J. reported as J. B. Kansal v. Waryam Singh, Vol. : 19(1981)DLT60 wherein the learned Judge took the view that if an affidavit, like the one contemplated, is defective inasmuch as the verification is not proper, opportunity can be given to the tenant to file a fresh affidavit in accordance with the law under inherent powers of the Controller.

(25) May be, if there is a bona fide mistake, the Controller has inherent powers to permit correction thereof but in the facts of this case, it appears to me that nothing was disclosed to the trial court as to why the tenant could not file the affidavit. Even after specific objection was taken by the landlord, no attempt was made to file another affidavit of the tenant. Various dates were thereafter fixed by the trial court and yet no attempt was made by the tenant to file his own affidavit. The revision-petition itself was filed in this Court as far back as 27-3-1981 but the affidavit of the tenant was filed in this Court only on 4-11-1981 along with an application.

(26) The social purpose of the summary procedure enshrined in Part Iii of the Act has been adequately commented upon by the Supreme Court in the case of Busching Schmits Private Ltd. v. P. T. Manghani and another, : [1977]3SCR312 as also by this Court in the case of Gurditta Mal (supra).

(27) The legislature provides this procedure knowing fully well about the dilatory tactics being adopted by litigants and lawyers.

(28) The Division Bench of this Court in the case of Gurditta Mal has held that the minimum requirement for obtaining leave to contest the eviction petition is that the tenant should file an application as well as affidavit within 15 days.

(29) Since nothing was brought to the notice of the learned Addl. Rent Controller as to why the affidavit of the tenant could not be filed, it is neither appropriate nor expedient in the facts of this case for me to interfere in revision. May be, as suggested by the learned counsel for the landlord, the tenant did not have guts to swear affidavit which may disentitle the landlord from claiming relief and it is only now under professional advice that he has chosen to file an affidavit in this Court after such a long delay. I also notice from the affidavit filed by the respondent-landlord dated 8.9.1981 that he is himself facing proceedings for his own ejectment from the premises which he is occupying as a tenant at the instance of his landlord under the provisions of proviso (h) to Section 14(1) of the Act and the same were last fixed before the IInd Addl. Rent Controller for 2.11.1981 and are still pending.

(30) The revision-petition accordingly fails and is dismissed. The tenant-petitioner is allowed six months time to vacate the premises on the condition that he pays arrears of rent, if any, and the rent for the month of November, 1981 at the agreed rate of Rs. 2,200/ p. m., by the 15th of the next following month, and continues to pay rent regularly by the 15th of the next following month. If, for any reason, there is any default in payment of rent as aforesaid, the tenant-petitioner will be liable to eviction forthwith.